Date: 20100820
Docket: T-436-04
Citation: 2010 FC 831
BETWEEN:
TODD SIMPSON, SKONWAKWENINI
GABRIEL,
SYLVIA BONSPILLE LORENTE, ANNIE MICHALA,
HILDA BONSPILLE, RUBY MARTIN, BELLIE BEAUVAIS,
SANDRA RICHARDS AND STEVEN BONSPILLE,
JOHN HARDING,
PEARL BONSPILLE personally and as duly
elected Chiefs of the
MOHAWK COMMUNITY OF KANESATAKE
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA,
the MINISTER OF INDIAN AND NORTHERN
AFFAIRS AND NORTHERN DEVELOPMENT CANADA, the MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS CANADA,
JAMES GABRIEL, CLARENCE SIMON, MARIE CHÉNÉ, DOREEN CANATONQUIN as duly
elected Chiefs of the MOHAWK COMMUNITY OF
KANESATAKE
Defendants
ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Order and Order dated October 15, 2009, the Court ordered:
1.
The action
against the individual Defendants is dismissed with prejudice and with costs to
those Defendants.
2.
The action
against the remaining Defendants is dismissed with costs in their favour but
without prejudice to one or more of the Plaintiffs filing a new action in
respect of the same subject but only with leave of this Court and within 30
days of this order.
[2]
At
paragraph 36 of the Reasons for Order and Order the Court states:
Given the past inaction, delays and
failure to comply and failure to properly retain and instruct counsel, the
government Defendants are entitled to their request that the action be
dismissed with costs as an abuse of process.
[3]
Other
than the above, the Court has rendered no further Directions as to Costs.
[4]
On
May 3, 2010 the government Defendants (Defendants) filed a Bill of Costs and
requested that the assessment proceed based on the Affidavit of Louis-Alexandre
Guay and such other proof as may be requested.
[5]
On June 3, 2010 counsel for the Plaintiffs
submitted that “the clients’ instructions are to not serve and file any
materials at this time relating to the costs they have incurred in this
matter”.
[6]
The time limits for filing material has now
passed and no further submissions have been filed by either party.
[7]
In
Dahl v. Canada, 2007 FC 192 at paragraph 2, the assessment officer
stated:
Effectively, the absence of any relevant
representations by the Plaintiff, which could assist me in identifying issues
and making a decision, leaves the bill of costs unopposed. My view, often
expressed in comparable circumstances, is that the Federal Courts Rules do
not contemplate a litigant benefiting by an assessment officer stepping away
from a position of neutrality to act as the litigant’s advocate in challenging
given items in a bill of costs. However, the assessment officer cannot certify
unlawful items, i.e. those outside the authority of the judgment and the
Tariff.
[8]
The
general premise set out in Dahl is clear that unless an item falls
outside the authority of the judgment or Tariff B an Assessment Officer should
not intercede on behalf of a party which did not file submissions unless the
items are not supported by the judgment or Tariff.
Assessable Services
[9]
Having reviewed the Bill of Costs it is
noted that several items have been claimed under the incorrect Item. For
example meetings with the Court and case Management conferences have been
claimed under Item 27, not Item 11 as set out in the Tariff. As correcting this
does not affect the range of units allowable, I have treated these Items on the
Bill of Costs as if they were claimed under the correct Item. Similarly, the
Motion Record in response to the Plaintiffs’ Motion for interlocutory and
permanent injunction was claimed under Item 2, not Item 5 as set out in the
Tariff. Once again correcting this does not affect the range allowable;
therefore, I have treated this Item on the Bill of Costs as if it was claimed
under the correct Item.
[10]
The
Plaintiffs’ motion for an interlocutory and permanent injunction was withdrawn
by way of letter dated March 23, 2004. On March 24, 2004 the Plaintiffs’
motion came on for hearing and the Court commented that the matter was
withdrawn after the close of business on March 23, 2004 and that the matter of
costs was still outstanding. No order was rendered.
[11]
Pursuant
to Rule 402 of the Federal Courts Rules:
Unless otherwise ordered by the Court or
agreed by the parties, a party against whom an action, application or appeal
has been discontinued or against whom a motion has been abandoned is entitled
to costs forthwith, which may be assessed and the payment of which may be
enforced as if judgment for the amount of the costs had been given in favour of
that party.
[12]
Although
there is no order of the Court awarding costs for the Plaintiff’s motion, the
motion was withdrawn. Therefore, as there is no evidence of an agreement
between the parties, pursuant to Rule 402, the costs relating to the
Plaintiff’s motion for an interlocutory and permanent injunction are allowed as
claimed.
[13]
Concerning
the Defendants’ third motion for an order for an extension of time to file
Defendants’ Affidavits of Documents, filed October 10, 2006, the order dated
November 9, 2006 awards costs in the cause. As the Reasons for Order and Order
dated October 15, 2009 award costs to the Defendants, the costs claimed for the
motion filed October 10, 2006 are allowed.
[14]
In
Balisky v. Canada (Minister of Natural
Resources),
2004
FCA 123
it was held:
Rule
400(1), which vests full discretionary power in the Court over awards of costs,
means that orders and judgments must contain visible directions that costs have
been awarded. Given the Federal Courts Act, ss. 3 and 5(1) defining the
Court and Rule 2 of the Federal Court Rules, 1998 defining an assessment
officer, the absence of that exercise of prior discretion by the Court leaves
me without jurisdiction under Rule 405 to assess costs. In Webster v. Canada
(Attorney General), [2003] F.C.J. No. 1652 (A.O.), I concluded that the
Rule 400(1) discretion in the court for interlocutory costs is exercised
independently from the result of the judgment, except where expressly provided
by language such as "costs in the cause". This means that I must reject
the Appellants' position that the judgment of the Federal Court of Appeal
perfected their entitlement to costs for interlocutory events in the Federal
Court for which the relevant orders specifically denied costs.
[15]
Having
reviewed the decisions of the Court, the file and the materials filed in
support of the Bill of Costs, it is evident that amounts claimed for other
motions under Item 5 (preparation and filing of a contested motion) and Item 6
(appearance on a motion) cannot be allowed. It follows that any disbursements
related to the disallowed motions cannot be allowed.
[16]
Having
regard to the costs claimed for the motion, filed April 8, 2004, for an Order
to have the proceeding managed as a specially managed proceeding, the order of
April 30, 2004 makes no mention of costs. Therefore, following Balisky, supra,
the costs claimed cannot be allowed.
[17]
Concerning
the Defendants’ motion, filed September 22, 2004, for an order for particulars,
the orders disposing of this motion, filed September 24, 2004 and January 21,
2005, specifically set out that the orders are without costs. Therefore, the
costs claimed cannot be allowed.
[18]
Similarly,
having regard to the Defendants’ motion for an order striking out portions of
the Plaintiffs’ reconstituted Statement of Claim, the order dated May 9, 2005
specifically set out that the order was without costs. Therefore, the costs
claimed cannot be allowed.
[19]
Concerning
the Defendants motions, filed January 24, 2006 and May 26, 2006, for orders for
an extension of time to file Defendants’ Affidavits of Documents, the orders
dated February 15, 2006 and July 12, 2006 make no mention of costs. Therefore,
following Balisky, supra, the costs claimed cannot be allowed.
[20]
Counsel
has claimed for assessable services relating to an appearance on a motion on
December 7, 2006. The matter before the Court related to a motion filed
November 21, 2006 by the Defendants James Gabriel and the Mohawk Council of
Kanesatake. Having reviewed the order of December 8, 2006 it appears that the
hearing of December 7, 2006 was a case conference. The order of December 8,
2006 sets the hearing date for the motion as February 22, 2007. The order makes
no mention as to costs. By way of order dated February 14, 2007, this
proceeding was stayed and the motion filed November 21, 2006 was adjourned sine
die. At no time was there an award of costs concerning the motion.
Therefore, following Balisky, supra, the costs claimed cannot be
allowed.
[21]
Another
concern relates to the fees for assessable services claimed under Item 24 for
travel by counsel. In Sarasin Consultadoria E. Servicos LDA v. Roox’s Inc., 2005 FC 725, it was held:
The Appellant in its Amended Bill of Costs has
claimed 4 units for Item G-24 (Travel by counsel to attend examination of Lino
Fornari) which the Respondent notes requires a prior Direction of the Court.
Item 24 of Tariff B, Federal Court Rules, actually reads:
24. Travel by counsel to attend a trial,
hearing, motion, examination or analogous procedure at the Direction of the
Court.
I rely on the reasons of Taxing Officer,
François Pilon in Beaulieu v. Canada, [2000] F.C.J. 2127 at paragraph
10:
… In item 24 of the bill of costs the
respondent claimed the sum of $500 for travel by counsel. In her written
submissions in reply Ms. Lavergne was prepared to reduce this amount to $100.
At the same time, the appellant based her objection on the phrase "at the
discretion of the Court" contained in item 24, which she submitted did not
extend to the assessment officer where no specific directions to that effect
had been given. The appellant is correct: only judges have the discretionary
authority to compensate counsel for travel. (emphasis mine)
I have reviewed the material in the Court
record and have determined that no such direction exists, therefore Item 24 is
disallowed.
[22]
In
keeping with the above reasons, as the Reasons for Order and Order of October
15, 2009 make no mention of the Court exercising its discretionary authority
under Item 24, Item 24 cannot be allowed.
[23]
All
other assessable Services claimed in the Bill of Costs are allowed as claimed.
Disbursements
[24]
As
previously mentioned any disbursements related to the motions which have been
disallowed cannot be allowed. Having reviewed the file and the Bill of Costs it
is not always a straightforward exercise to determine which disbursements are
related to motions. On the other hand it is clear that some of the disbursements
are associated with motions. It has been decided many times in the past that
the assessment of costs is rough justice, in the sense of being
compounded of much sensible approximation. It has also been decided that
discretion may be applied to sort out a reasonable result for costs equitable
for both sides. (Carlile v. Canada (M.N.R.), [1997] F.C.J. No.
885.)
[25]
In keeping with the above reasoning and having reviewed the file
and Bill of Costs, disbursements, presented at $7,376.01 are allowed at
$6,723.88.
[26]
Further
to these reasons, the Bill of Costs presented at $24,522.87 is allowed for a
total amount of $18,364.61. A certificate of assessment will be issued.
“Bruce Preston”
Toronto, Ontario
August 20, 2010
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